Catholic long-term care provider claims free speech violations in its full appeal against Affordable Care Act contraception policies

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NY nursing home worker faces homicide charges after a resident was impaled
NY nursing home worker faces homicide charges after a resident was impaled

A Catholic long-term care provider is claiming freedom of speech and religious freedom violations in a much-anticipated legal appeal over the Affordable Care Act's contraception mandate.

The Little Sisters of the Poor, a group of nuns operating about 30 U.S. nursing homes, initially asked a U.S. District Court to grant an injunction so that the organization would not have to fill out a form to be excluded from the so-called contraception mandate

The nuns say that by filling out the government's form to get relief from the mandate, they essentially would be directing the third-party health plan to provide Little Sisters' employees with contraception.

The district court denied the injunction, but the U.S. Supreme Court subsequently granted it pending a full appeal. The Little Sisters, represented by public-interest law firm The Becket Fund, filed that appeal Tuesday.

The 74-page brief offers many of the religious freedom arguments that have been at the center of this high-profile legal fight. For example, the requirement to fill out the form or face “massive penalties” represents a “substantial burden” on the nuns' “religious exercise,” the appeal states.

The groups also contend that filling out the form is a type of speech, and the government therefore is forcing the Little Sisters either to engage in speech against its will or incur penalties. Furthermore, federal law bars the Little Sisters from telling its health plan that their business relationship might change if the plan provides contraception coverage, the appeal notes. This means the government is violating freedom of speech by forcing the religious organization to remain silent against its will, the Little Sisters assert.

The moral implications of filling out the form basically do not exist, critics counter. The Little Sisters organization “reads too much into the language of the form,” the U.S. District Court said. Critics of the Little Sisters also point out that the provider's health plan, the Christian Brothers Trust, would not be required under the law to provide contraception even if the nursing home company fills out the controversial form. The Little Sisters alluded to this when making their freedom of speech arguments.

“It is irrelevant that the government assumes that, since Christian Brothers will not act on the speech and the government cannot (currently) use its … enforcement authority to force them to, there will be no practical effect of the compelled speech,” the legal brief states. “Being compelled to ‘utter what is not in [one's] mind' is itself the harm, regardless of whether that utterance triggers other actions.”

The Little Sisters case is one of 92 challenging the contraception mandate, according to the Becket Fund. Last week, a federal appeals court denied the University of Notre Dame's request for an injunction similar to the one granted the Little Sisters. The U.S. Supreme Court is expected to hear arguments in another crucial case on the matter, brought by craft store chain Hobby Lobby, next month.

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